India & the Struggle for Tamil Eelam

Jain Commission Interim Report
August 1997

Whatever may be said, who ever may say it - to
determine the truth of it, is wisdom - Thirukural

2.1 Shri Rajiv Gandhi who was on an election campaign of his party to Tamil Nadu and which unluckily proved to be the last lap of his journey, was in a human bomb explosion at Sriperumbudur, about 40 kms from Madras (now called Chennai ), on the night of 21st May, 1991, where he was to address a public meeting.

On hearing the tragic news, the Cabinet under the chairmanship of the then Prime Minister Shri Chandra Shekhar met at the early hours of 22nd May, 1991 and after adopting a condolence resolution on the sad and tragic demise of Shri Rajiv Gandhi decided that a Commission of Inquiry presided over by a Judge of the Supreme Court should be set up to go into the circumstances of the assassination of Shri Rajiv Gandhi. It was later decided that the composition and terms of reference of the Commission may be approved by the Prime Minister. The Cabinet further directed that a special investigation team be rushed to Madras.

2.2 Shri R K Bhargava, the then Secretary Ministry of Home Affairs, prepared a draft Notification regarding setting up of a Commission of Inquiry under Section 3 of the Commissions of Inquiry Act, 1952 (60 of 1952 ) and submitted it for approval to Home Minister/Prime Minister through the Law Secretary and the Cabinet Secretary. Shri Bhargava in his note dated 22nd May, 1991 stated that the incident in which Shri Gandhi met with his death gave rise to speculation as to whether the security arrangements made by the Government were sufficient or not or was it merely a chance which caused this incident or whether there was an attempt by a person who without caring for his/her life indulged in this act of vandalism.

It was therefore necessary to examine the security aspect and the Commission of Inquiry which the Home Ministry proposed to set up should be looking into this aspect. The Commission will inquire into causes of the adequacy or inadequacy of the security arrangements. It will also point out the deficiencies so that the details would assist the Government in future security for such eminent persons.

2.3 The then Home Minister of State Shri Subodh Kant addressed a letter on 23rd May, 1991 to Mr Justice Ranganath Misra, the then Chief Justice of India stating that the Government of India has decided to set up under section 3 of the Commissions of Inquiry Act, 1952 ( 6Q of 1952 ) a Commission of Inquiry comprising a sitting Judge of the Supreme Court to inquire into a matter of public importance, namely, the assassination of Shri Rajiv Gandhi, former Prime Minister of India on 21st May, 1991 and requested the Chief Justice to spare the services of a sitting Judge of the Supreme Court to head the Commission.

Justice Misra replied by his letter dated 25th May 1991 stating that while the Supreme Court has taken a decision generally not to spare the services of sitting judges for such purposes, the Court: has agreed to make an exception in the present case keeping in view the impact of the incident on our democratic polity and nominated Mr Justice J S Verma, a sitting Judge of the Court for the purpose who had given his consent. The Ministry of Home Affairs, Government of India, issued Notification SO No.356 (E) dated 27th May, 1991 appointing one-man Commission of Inquiry headed by Mr. Justice J S Verma.

2.4 It appears that the terms of reference of the Verma Commission of Inquiry did not satisfy the Congress Party which found its echo in the media and also in the Rajya Sabha during the Short Duration Discussion held on 4th June 1991 on the assassination of Shri Rajiv Gandhi The All India Congress Committee President Shri PV Narasimha Rao addressed a letter dated 2nd June, 1991 to Shri Chandra Shekhar, the then Prime Minister of India. In the letter Shri Rao stated that after consulting his colleagues he was forwarding therewith a revised draft of the terms of reference which in their view will meet with the ends of justice and satisfy the people and hoped that the Prime Minister will do the needful. The revised terms of reference included in the proposed draft notification, read as under:

(a) Whether the assassination of Shri Rajiv Gandhi could have been averted and whether there were lapses or dereliction of duty in this regard on the part of any of the individuals on security duty before/at/during the time of the commission of the assassination.

(b) the deficiencies, if any, in the security system and arrangements as prescribed or operated in practice which might have contributed to facilitate the commission of the assassination.

(c) Whether any person or persons or agencies were responsible for conceiving, preparing and planning the assassination and, whether there was any conspiracy in this behalf and, if so, all its ramifications.

2.5 Shri R.K. Bhargava thereupon addressed a letter dated 4th June, 1991 to Mr. Justice Verma stating that the Home Ministry have now been approached by the All India Congress Committee for revising the terms of reference and enclosed to his letter three documents, namely:

(1) Notification dated the 20th November, 1984 issued by the Ministry of Home Affairs setting out the terms of reference of the Thakkar Commission.

(2) Notification dated the 27th May, 1991 issued by the Ministry of Home Affairs setting out the terms of reference of the Verma Commission.

(3 ) Letter dated June 2, 1991 of the President, All India Congress Committee regarding amendment of the terms of reference of the

Verma Commission.

Shri Bhargrava requested Mr Justice Verma for his comments on the suggestions made by the All India Congress Committee for the revision of the terms of reference. Mr Justice Verma replied to Shri Bhargava by his letter dated 8th June, 1991. In his reply Mr Justice Verma inter alia opined that existing terms of reference alone fall within tlhe purview of the legitimate functions of a sitting Judge of the Supreme Court of India, the suggested addition to these terms being outside the domain of judicial function. The Government would also be aware that the Supreme Court subscribed to this view when it made an exception and agreed to spare the services of a sitting Judge to head the Commission ... the matters covered by the suggested additional terms of reference do not fall within the scope of the legitimate functions of a sitting Judge and by its very nature are within the scope of the functions of the investigating agencies which are engaged in the task of investigation of the crime ".

In view of his opinion regarding the legitimacy and propriety of inclusion of the suggested additional terms of reference to the existing terms of reference of the Commission, Mr Justice Verma regretted his inability to subscribe to the view that the terms of reference contained in the Notification dated .May 27, 1991 can be enlarged to widen the scope of inquiry to be made by the Commission and expressed his inability to give his consent for enlargement of the scope of the Inquiry.

2.6 In the meanwhile the political scenario in the country changed. The Congress party came back to power after the general elections held in May-June, 1991. The Congress formed the Government at the Centre and Shri P.V. Narasimha Rao became the Prime Minister of India on 21st June, 1991. Shri Rao then addressed a letter dated 29th June, 1991 to Chief Justice Shri Ranganath Misra. Shri Rao stated in his letter that the assassination of Shri Rajiv Gandhi is a great setback to our democratic polity. It is therefore necessary that the Commission inquires into aspects relating to the assassination of Shri Rajiv Gandhi. For this, the terms of reference for the Commission of inquiry, as laid down in the Notification dated 27th May, 1991, will need modification. The government therefore proposes to modify the terms of reference of the Commission of Inquiry as follows

"The Commission shall inquire into the sequence of events leading to and all the facts and circumstances relating to the assassination of Shri Rajiv Gandhi at Sriperumbudur, including:

(a) Whether the assassination of Shri Rajiv Gandhi could have been averted and whether there were lapses or dereliction of duty in this regard on the part of any of the individuals on security duty before/at/during the time of the commission of assassination.

(b) The deficiencies if any, in the security system and arrangements ,as prescribed or operated in practice which might have contributed to/facilitated the commission of the assassination.

(c) Whether any person or persons or agencies were responsible for conceiving, preparing and planning the assassination and, whether there was any conspiracy in this behalf and, if so, all its ramifications.

The Commission may also recommend the corrective remedies and measures that need to be taken for the future with respect to the matters specified in clause (b) and (c) above".

2.7 Shri Rao requested the Chief Justice to give his consent for modifying, the terms of reference of the Commission so that a Notification could be issued accordingly.

2.8 Chief Justice Misra in his reply dated 7th July 1991 stated that so far as clauses (a) and (b) were concerned there would be no objection but clause (c) of the proposed draft is a matter directly related to investigation and conspiracy would be a criminal charge . If prima facie material is available he pointed out that such an aspect should not be investigated by a sitting Judge for reasons more than one. The Commission cannot punish the accused again, a finding by the Commission either way would prejudice the criminal trial and suggested that clause (c) be omitted and the terms may read as under:

"The Commission shall inquire into the sequence of events leading to the assassination of Shri Rajiv Gandhi at Sriperumbudur for the purpose of determining:

(a) Whether the assassination of Shri Rajiv Gandhi could have been averted and whether there were lapses or dereliction of duty in this regard on the part of any of the individuals on security duty before/at/ during the time of the commission of assassination

(b) the deficiencies, if any, in the security system and arrangements as prescribed or operated in practice which might have contributed to facilitated the commission of assassination. The Commission may also recommend the corrective remedies and measures that need be taken for the future with respect to the matter specified in clause (b) above

2.9 Chief Justice Misra further wrote a letter dated l9th July, 1991 to the Prime Minister Shri Rao. While referring to his earlier letter dated 7th July, the Chief Justice stated that It is quite possible that there would be some grey area even as to justify investigation of the crime and the allegation of conspiracy by a Commission. In case you are of the view that there should be a judicial probe also into that aspect perhaps it could be undertaken by a retired Chief Justice or a retired Judge of a High Court and that issue should be separated from the work to be assigned to the Verma Commission. What really belongs to the domain of investigation should perhaps not be shared with a Commission but in case, in principle, you are inclined to have a judicial probe to aspects integrally connected with investigation, I am prepared to recommend the name of a retired Judge for such purpose.

So far as reference to Verma Commission is concerned the following could be the reference: The Commission shall make an inquiry with respect to the following matters:

(a) Whether the assassination of Shri Rajiv Gandhi could have been averted and whether there were lapses or dereliction of duty in this regard on the part of any of the individuals on security duty before/at/during the time of the commission

(b) The deficiencies if any in the security system and arrangements as prescribed or operated in practice which might have contributed to/ facilitated the commission of assassination.

( c ) The sequence of events leading to the assassination of Shri Rajiv Gandhi at Sriperumbudur as may be material for class. (a) and (b).

The Commission may also recommend the corrective remedies and measures that need be taken for the future with respect to the matter specified in clause (b) above".

2.10 During the "Half-an-hour discussion on points arising out of answer given on 17th July, 1991 to starred question No. 62 regarding Commission to inquire into assassination of Shri Rajiv Gandhi, Shri S.B. Chavan, the then Union Home Minister inter alia made the following statement in the Rajya Sabha on 25th July 1991:

"About: the enlargement of the terms of reference we did make a statement. I am prepared to admit the fact that we said within three or four days we will be able to take a final decision about it. Now, I propose to give the latest information. The question of modifying the terms of reference of Verma Commission of Inquiry has been agitating the hon'ble Members Justice J.S. Verma, a sitting Judge of the Supreme Court, was appointed in consultation with the Chief Justice of India to inquire into the assassination of Shri Rajiv Gandhl, former Prime Minister of India. Certain terms of reference were set out in the notification constituting the Commission.

The Supreme Court is of the opinion that such terms should be given to a sitting Judge of the Supreme Court which fall within the purview of the legitimate functions of a sitting Judge. The Commission is prepared to inquire into the sequence of events, security lapses, deficiencies in security system and arrangements which contributed to the commission of the assassination and recommend corrective remedies and measures thereto. The other aspects, Viz, investigation and conspiracy, are by their very nature within the scope of the functions of the investigating agency which is engaged in the task of investigation of the crime. It was pointed out this should not be investigated by a sitting Judge.

On receipt of this view, discussion has been initiated at the highest level to see as to how the modifications in the terms of reference could be made. Some correspondence has been exchanged in this matter and there has been a forward movement in our discussion with the Chief Justice of India. I would like to assure the hon'ble Members that the matter has been pursued with utmost seriousness and urgency on our side. However, as I have stated, we have to take further steps in consultation with the Supreme Court and this would take some time. Hon'ble Members may bear with us for the period".

Again on 26th July 1991, Shri Chavan further stated in the Rajya Sabha: "There is only one point left and that is about enlarging the terms of reference of this Commission. I have said yesterday and again I am repeating here, we stand committed to the position that we have taken earlier, there is not going to be any difference so far as that aspect is concerned. Now, it is only a question of a question of taking the Supreme Court into confidence. Justice Verma is not prepared. I cannot possibly disclose any of the correspondence that we had with the Supreme Court but they made an exception by saying that they would only accept two parts of the inquiry which was earlier given to them. And the amendment which was suggested by us, he is not prepared to accept. That is the position.

We are trying our level best to find out whether any other Judge can be appointed by the Supreme Court after having full discussion with the Chief Justice of India and if, for any reason, we do not succeed, then some other method will have to be thought out. But we are very much interested to find out, who are the conspirators behind the whole thing? It is not so much in the case of Indira Gandhi that the same thing happened. The immediate killers were given punishment, but at the same time we could not trace out as to who were the people behind the whole matter.

In the case of Rajiv also, though the LTTE seems to be connected, whether there are any other international forces behind this conspiracy is the main thing which we will have to enquire into, How far we are going to succeed is to be seen .

At least I feel confident that some of the agencies are known . but we should get some klnd of a clue, some evidence that these are the agencies which are connected. This doubt is crested in my mind because of the fact that this assassination took place when unfortunately or fortunately Rajivji declared that Congress is going to come in power and he is going to be the Prime Minister. Thereafter this assassination has taken place. The leadership of the Third World happens to be, whether we like it or not, with India and when we meant India, it was Rajiv Gandhi and none else. Therefore it is irritant to some of the countries who are now left almost unchallenged as a super power ....

Now a point which we have to consider is, if he was going to emerge as the leader of the third world, whether he should be allowed to remain or he was to be finished so that India would not have any leader of his stature who can possibly take up the issue and fight with the super powers. So this is the kind of suspicion that I have, and it becomes all the more necessary that "we have to go deep into the matter and try to find out who are the conspirators against whom we can say that, these are the conspirators who are at the root of the assassination of Rajiv Gandhi.

If it is declined by the Supreme Court, certainly we will try our Ievel best to-see that some other sitting Judge accepts this position, and if no sitting Judge is prepared to take up this matter, then we will have to consider whether for only this term of reference we can appoint any other Judge and leave the two terms of reference to the sitting Judge of the Supreme Court".

2.11 On the question of appointment of two Commissions of Inquiry on the different aspects of the assassination of Shri Rajiv Gandhi, a note (Annexure xii) was sent to the Prime Minister of India on 29.7.1991. It is not clear from the note, which simply bears someone's initials, as to who was the author of this note and whether it was prepared in the Prime Minister's Office or the Cabinet Secretariat. The note reads as under:

"The question-for consideration is whether there can be appointed two Commissions under the Commission of Inquiry Act to deal with the questions relating to different facets of the killing of Shri. Rajiv Gandhi as may be referred for inquiry.

The aspects which were to be referred to the Verma Commission are:

( 1 ) As to how the incidents happened leading to the killing of Shri Rajiv Gandhi; and (2) Whether there was security lapses which facilitated such killing.

Along with these two aspects the other aspect for inquiry is as to whether there was any conspiracy and if so who are parties to it.

The Chief Justice of India had indicated that Justice Verma, a sitting Judge, was not to be entrusted with the inquiry relating to conspiracy. Conspiracy is a criminal charge and at the end of investigation by SIT, if a prima facie case is made out, a criminal trial is bound to follow. Investigation by a sitting Judge of the Supreme Court of India into the matter which might end up in a criminal trial is bound to prejudice the accused persons in case Justice Verma goes into the question of conspiracy and finds one. It has, therefore. been the advice of the Chief Justice of India that the investigation part of it should be delinked from the other two aspects which Justice Verma has agreed to go into.

It may be pointed out that when Mrs. Gandhi was assassinated, there followed widespread riots in Delhi, Kanpur and Bokaro apart from at other places in India. Justice Misra was appointed as the one-man Commission to inquire into two aspects, viz., how the riots had happened and to suggest ways and means for ensuring non-recurrence. Conspiracy in the matter of assassination of Mrs. Gandhi was simultaneously being inquired into by Justice Thakkar who was assisted by a very powerful investigating team headed by Shri Anandram. Splitting up therefore is not being done for the first time.

Investigation on the earlier occasion should not have been handled by Thakkar then a sitting Judge of the Supreme Court. That led to a lot of embarrassment. At one stage in the criminal trial against Satwant Singh and others, the report of Thakkar was attempted to be brought on record and grievance was made until the last moment by Shri Jethmalani, Advocate of the accused, that the trial was prejudiced on account of Thakkar's report not being placed.

To avoid recurrence of these difficulties it would be convenient to allow Verma to inquire into the two aspects already entrusted to him. With the investigation part of the matter which SIT is doing, a retired Chief Justice or a retired Judge of the High Court can be associated. If the Judge has experience of criminal matters both at the Bar and on the Bench it would be of immense assistance'.

2.12 PS to Home Minister in his note dated 1.8.1991 to the Home Secretary stated that the Home Minister has desired that an additional Judge be appointed to look into those aspects of the late Shri Rajiv Gandhi's assassination case which the Verma Commission has been reluctant to accept. He further stated that HM has desired that Home Secretary may write to Chief Justice of India requesting for nomination of an additional Judge who may be either sitting Judge- or retired Judge of the High Court. The Deputy Secretary (IS Division) in the Ministry of Home Affairs in his note dated 1.8.1991 pointed out that the Chief Justice of India in his letter dated 19th July, 1991 did not indicate about the inclusion of the clause regarding "conspiracy" but only agreed to incorporate the clause regarding the "sequence of events leading to the assassination of Shri Rajiv Gandhi".

Now that the Government has taken a decision to appoint another Judge to look into those aspects which were not acceptable to the Verma Commission, it would be desirable to include this clause (sequence of events) also in the new Commission of Inquiry along with clause on "conspiracy". A draft letter to the Chief Justice of India was put up for approval to the Home Minister. The Home Minister modified the draft that the Chief Justice may be requested to recommend the name of a sitting or retired Chief Justice of a High Court.

2.13 The Law Secretary to whom the draft was sent for vetting recorded in his note dated 5.8.1991 that the terms of reference proposed to be entrusted to the new Commission were modelled on the terms of reference entrusted to Justice Thakkar's Commission in connection with the assassination of the late Prime Minister Smt.Indira Gandhi (vide (a) and (e) of paragraph 2 in the Notification dated 20th November, 1984 appointing a Commission presided over by Justice Thakkar) and that there does not appear to be any legal objection to the terms of reference proposed to be entrusted to the new Commission. He however pointed out that consistent with the well-established convention it may be advisable that the proposed letter be written by the Law Minister rather than by the Home Secretary. After the Home Minister approved of it, Shri K. Vijya Bhaskara Reddy, the then Minister of Law, Justice s Company Affairs addressed a letter dated 8th August 1991 to Chief Justice Ranganath Misra. The material portion of the letter read as under:

"The Government has now decided to appoint another Commission of Inquiry under the Commission of Inquiry Act, 1952, to inquire into other aspects relating to the assassination of Shri Rajiv Gandhi. The Government proposes to have the following terms of reference for the new Commission of Inquiry.

"The Commission shall inquire into the sequence of events leading to and all the facts and circumstances relating to, the assassination of Shri Rajiv Gandhi at Sriperumbudur (other than what is covered by the terms of reference for the Commission of Inquiry headed by Mr. Justice Verma), including whether any person or persons or agencies were responsible for conceiving, preparing and planning the assassination and whether there was any conspiracy in this behalf and, if so, all its ramifications.

In this regard, I would be thankful if you could recommend the name of a sitting or retired Chief Justice of a High Court who could constitute the new Commission. I would be grateful if this could be done expeditiously."

In reply the Chief Justice in his letter dated 9th August, 1991 recommended the name of Mr Justice M.C. Jain who retired as Chief Justice of the Delhi High Court in the third week of July, 1991 to be the Commission for the purpose indicated in the Law Minister's letter. A draft Notification was then prepared in the Ministry of Home Affairs and sent to the Law Secretary for vetting. The Joint Secretary in the Ministry of Law & Justice in his note dated 20.8,1391 inter alia stated that the terms of reference are on the lines of the Notification issued by the Ministry of Home Affairs on 20th November, 1984 in connection with the inquiry into the assassination of Smt. Indira Gandhi. However, matters which have already been entrusted to Justice J.S. Verma have been excluded from the proposed inquiry. He also made certain suggestions ln the draft. The draft was then sent to the Legislative Department for vetting where it was further amended culminating in the appointment of this Commission of Inquiry vide Ministry of Home Affairs Notification S.Q.No.545 (E) dated 23rd August, l991 (F.No.I/1.2014/17/9l-IS(D.III) (Annexure 1). The Notification reads as under:

"S.O.No.545(E)-Whereas the Central Government is of the opinion that lt. is necessary to appoint a Commission of Inquiry, besides the Commission of Inquiry headed by Shri Justice J.S. Verma appointed vide notification No.S.0.356(E), dated the 27th May, 1991 for the purpose of making an inquiry into a definite matter of public importance, namely, the assassination of Shri Rajiv Gandhi, former Prime Minister of India, on the 21st May, 1991.

Now, therefore, in exercise of the powers conferred by section 3 of the Commissions of Inquiry Act , 1952 (60 of 1952 ), the Central Government hereby appoints a Commission of Inquiry consisting of Shri Justice M.C. Jain, retired Chief Justice of the High Court of Delhi.

2. The commission shall make an inquiry with respect- to the following matters:

(a) the sequence of events leading to and all the facts and circumstances relating to, the assassination of Shri Rajiv Gandhi at Sriperumbudur (other than the matters covered by the terms of reference for the Commission of Inquiry headed by Shri Justice J.S Verma);

( b ) whether any person or persons or agencies were responsible for conceiving, preparing and planning the assassination and whether there was any conspiracy in this behalf and, if so, all its ramifications .

3 The Commission shall submit its report to the Central Government as soon as possible but not less than six months.

4. The Commission may, if it deems fit, make interim reports to the Central Government before the said date on any of the matters mentioned in paragraph 2 above.

5. The headquarters of the Commission shall be at New Delhi.

6. The Central Government is of the opinion that, having regard to the nature of the inquiry to be made and other circumstances of the case, all the provisions of sub-section (2), sub-section (3, sub-section) 54 and sub-section (5) of section 5 of the Commissions of Inquiry Act. 1952 (60 of 1952), should be made applicable to the said Commission and the Central Government in exercise of the powers conferred by sub-section (13 of the said Section 5, hereby directs that all the provisions of the said sub-sections (2), (3), (4) and (5) of that section shall apply to the Commission".

Inquiry on the assassination of Shri Rajiv Gandhi?

2.14 Dr. B.L Wadehra, Advocate, a party before the Commission, filed an application (No.42/95-JCI) dated 16.08.1995 urging the Commission to summon Shri R.K. Bhargava, the then Home Secretary, in order to seek information about the Government's decision originaly to put out restrictive terms of reference and then to enlarge the same resulting in the appointment of two separate Commissions of Inquiry on the same subject, namely, the assassination of Shri Rajiv Gandhi, instead of constituting one Commission of Inquiry with comprehensive terms of reference as had been done in the case of Prime Minister Smt. Indira Gandhi who fell to the bullets of her own security guard and in whose case the Thakkar Commission of Inquiry was set up by the Ministry of Home Affairs vide Notification S.No. No.867(E) dated 20.11.1984.

Some of the other submissions made in the application briefly stated were:

(a) Why did Shri Bhargava choose to include in the Notification of 27th May, 1991 only a part of the terms of reference which his predecessor Shri Prem Kumar had listed in the 20th November, 1984 Notification, when both the Notifications related to the similar subject, namely, assassination of former Prime Minister of India and were issued by the same Ministry, viz., the Ministry of Home Affairs.

(b) Was the decision to put out restrictive and truncated terms of reference in the Notification dated 27th May, 1991 was Shri Bhargava's own and if sot what were the considerations or factors that had gone into his decision?

(c) What were the basis or grounds on which Shri Bhargava excluded certain very important terms of reference relating to the conspiratorial aspect etc. from the Notification of 27th May 1991?

(d) Was the decision to include the narrower terms of reference in the Notification of May 27, 1991 was at the behest or orders of the higher authorities, including the Cabinet Secretary, the Home Minister or the rime Minister?

(e) Was it only a clerical exercise based on the advice of his juniors and if so, the reasons therefore, or was it a case of non application of mind on his part.

(f) Was it necessary for the Government to wait until pressure from the Congress party, the public and the media was built up against the restrictive terms of reference and only then to react to it and why did not the authorities, including the Home Minister, and Prime Minister think of enlarging the terms of reference at the time of issuance of the original Notification dated 27th May, l991?

2.15 According to Dr. Wadehra it was essential to dispel the lingering doubt about the intention of the bureaucrats and the political authorities of the day because the doubt expressed was that the Government had deliberately decided to set up the Verma Commission of Inquiry with restrictive and truncated terms of reference as it was not serious or had no intention to find out the truth about the entire facts and circumstance surrounding the assassination of Shri Rajiv Gandhi, particularly the persons or forces or powers inside or outside the country which could have been involved in conceiving, preparing and planning the assassination of Shri Rajiv Gandhi.

2.16 The Commission therefore considered it necessary to summon the original record/files relating to the constitution of the two Commissions of Inquiry and directed Shri B. Datta, Coun3el for the Central Government on 25.841S95 to produce the said record/files on or before 31st August, 1995. On 6.9.1995 during the course of the proceedings at about 3.00 P.M Shri Raghuvendra Singh, Deputy Secretary (Internal Security), Ministry of Home Affairs appeared and submitted that the file could not be traced and prayed for time upto 11th September, 1995. The time was allowed as prayed. A letter No.I/12014/17/95IS(D.III) dated 11th September, 1995 was received from Shri S. Prakash, Joint Secretary, Ministry of Home Affairs regretting that the Ministry has not been able to locate the file on Verma Commission of Inquiry as yet, that allout efforts to locate the file were being made and that the file will be produced and that the file will be produced before the Commission the moment it was available. Along with the letter Shri Prakash submitted a reconstructed file on the Verma Commission of Inquiry containing whatever papers/documents that were available with the Ministry.

2.17 The reconstituted file contained copies of the following papers:

(1 ) Extracts of Notesheets of File No.l/12014/5/ 91-IS(DeI1I), consisting of note dated 26.6.91 of Shri Ashok Bhatia, Joint Secretary, Ministry of Home Affairs, note dated 26.5.1991 of Shri R.K. Bhargava, Home Secretary, note dated 28.6.1991 of Union Home Minister and endorsement dated 3.7.1991 by the Prime Minister's office.

( 2 ) Minutes of the meeting of the Cabinet held at 4.00 A.M on Wednesday, the 22nd May, 1991, at 7, Race Course Road, New Delhi (Ex .297).

(3) Letter No.L-19Oll/ll/9l-Jus. Dated 27.5.199l from Ministry of Law & Justice (Department of Justice) addressed to Joint Secretary (IS), Ministry of Home Affairs, regarding appointment of Shri Justice J.S. Verma Judge, Supreme Court of India, as Commission of Inquiry.

(4) Ministry of Home Affairs' Notification No.S.0.356tE) dated 27.5.1991 regarding appointment of Commission of Inquiry headed by Shri Justice J.S. Verma.

(5) Letter dated 2nd June, 1991 from Shri P.V. Narasimha Rao, President, A11 India Congress Committee(I) to Shri Chander Shekhar, Prime Minister, with a revised draft of the terms of reference.

(6) DO letter No.G-3634/HS/91 dated 4.6.1991from Shri R.R. Bhargava, Secretary to govt of India, Ministry of Home Affairs to Shri Justice J.S Verma, Judge, Supreme Court of India .

(7) Letter dated 8.6.1991 from Shri Justice J.S. Verma, Judge, Supreme Court of India to Shri R.K. Bhargava, Secretary, Ministry of Home Affairs.

(8) Letter dated 29.6.1991 from Shri P.V Narasimha Rao, Prime Minister of India to Shri Ranganath Misra, Chief Justice of India.

Since the relevant file could not be produced by the Government, the Commission while directing issue of summons to Shri R.K. Bhargava for 26.9.1995 passed the following Order on 12.9.1995: "Shri S. Prakash, Joint Secretary to the Government of India in the Ministry of Home Affairs, has informed the Commission vide his letter dated 11.9.1995 that the file on appointment of the Verma Commission of Inquiry could not be located and the same will be produced when it is available and efforts for locating the same are being made.

A reconstructed file containing whatever papers/documents are available, was sent along with the letter. From the Note of Shri Ashok Bhatia, Joint Secretary(Internal Security), Ministry of Home Affairs, dated 25.6.1991, it appears that the security aspect was in contemplation of the Government to be inquired into by a Judge of the Supreme Court. In the minutes of the meeting of the Cabinet held on 22 5.1991 at 7. Race Course Road, at 4.00 A.M., a decision was taken that a Commission of Inquiry presided over by a Judge of the Supreme Court should be set up to go into the circumstances of the assassination of Shri Rajiv Gandhi. The composition and term of reference of the Commission may be approved by the Prime Minister. The Cabinet further directed that a Special Investigation Team may be rushed to Madras.

There are no papers in the reconstructed flle showing what terms of reference were proposed which were approved by the Prime Minister. From the letter written by Justice J.S. Verma to the then Home Secretary Shri RK Bhargava dated 8.6.1991, it appeared that the extended terms of reference were not acceptable and the extended terms of reference initially, it appears, were not referred to him for inquiry. Dr. B.L. Wadehra submitted that a question arises as to why only narrower terms of reference ought to be inquired into and what proposals were made in connection with the terms of reference for approval by the Prime Minister. When the terms of reference of the Thakkar Commission of Inquiry were there before the Government, why those terms of reference were ignored; why they were not taken into consideration while setting up the Commission initially? He submits that Shri R.K. Bhargava may be called and till then the Government may be directed to locate the file and produce the same....

Let Shri R.K. Bhargava be summoned for 26th September, 1995 at 1.30 p.m. and the Central Government is further directed to locate the file regarding the appointment of the Verma Commission of Inquiry and produce the same by 22nd September, 1995".

2.18 An affidavit (No.324/95-JCI) dated 6th October, l.995 was filed by Shri S. Prakash, Joint Secretary, Ministry of Home Affairs inter alia stating that the Ministry is unable to produce and submit the relevant file and solemnly assured the Commission that all-out efforts to locate the file shall continue to be made and as soon as the file was traced out the same shall be produced. It will be worthwhile to quote the affidavit in extenso : "I, Shashi Prakash, S/o late Shri Sant Prakash, working as Joint Secretary in the Ministry of Home Affairs do solemnly affirm and state that immediately after the assassination of Shri Rajiv Gandhi on 21st May, 1991, a Commission of Inquiry under Mr. Justice J.S. Verma, a sitting Judge of the supreme Court was set up to inquire into the question of security lapses leading to the assassination: of Shri Rajiv Gandhi. For this purpose this Ministry had opened file No.I.12014/5/91-IS(D.III).

On 27th July, 1991 this file, containing all relevant papers relating to the constitution of the Inquiry Commission was sent to the PS to Prime Minister under instructions of the Home Minister. When the File was not received back for some time the Ministry of Home Affairs issued numerous reminders to the Prime Minister's Office at various levels to return the aforesaid file.

Pursuant to the order of the Jain Commission of Inquiry to produce the file before it by 31st Aug 11, 1995, the Prime Minister ' s Office was again reminded on 29.8.95 at Special Secretary's level to locate the file and return it to the Ministry of Home Affairs. Since no response was received from the Prime Minister' s Office extension of time in this regard was sought from the Commission. The Commission has directed that the file may be produced by 11th September l995 . Another reminder was sent to the Prime Minister's Office on 6th September,1995 for returning the file.

In the meantime, the file was reconstructed on the available papers and documents and submitted to the Commission on 11th September, 1995, indicating that the efforts to locate the file were continuing and the file would be produced before the Commission as soon as it was available. However, in its sitting on 26.9.95 the Commission directed that the file should be traced out and produced before it by 5th October, 1995. Consequent to the directions of the Commission on 28.9.95 a meeting was taken by MOS(Commerce) who is Minister Incharge of the matter pertaining to the Jain Commission in which the following officers were present:-

1. Cabinet Secretary

2. Home Secretary

3. SS(ISP) MHA

4. Shri RS Sethi, JS(S), MHA

5. Shri S. Prakash, JS(IS.I), MHA

6 Shri Imtiaz Khan JS, PMO

7. Shri Arun Mathur, Director, PMO.

In this meeting, a decision was taken to launch a massive search for other file in all the offices including PMO (South Block) and PMIs residence and the Home Ministry. PMO has informed on 2.10.95 that a thorough search was undertaken by a team of three officers for locating the file in PMO, South Block. The team was assisted by the Section Officers of all the Sections of PMO. The team has reported that the said file could not be located in any Section of the PMO. A similar search was conducted in Race Course Road residence of the PM and it has been intimated that this file is not available at PM's residence also . Further search in the Home Ministry have also not resulted in the location of this file.

In view of the above it is regretted that the Ministry of Home Affairs is unable to produce and submit the aforesaid file to the Hon'ble Commission. I solemnly assurle the Hon'able Commission that all efforts to locate the file shall however continue and as soon as the file is traced out, the same shall be produced.

2.19 The Commission in the circumstances thought it proper to offer one more opportunity to trace the file and directed on 9.10.1995 that in case the file is not traced out on the basis of the papers available a file may be prepared and the same be produced. On 24th October, 1995 Shri B Datta, Counsel for the Central Government stated that the concerned file could not be traced and that he had submitted a bunch of papers obtained from the Registrar General of the Supreme Court of India. Another bunch of letters including some letters from the Ministry of Law & Justice was submitted by Shri S. Prakash, Joint Secretary, Ministry of Home Affairs, vide his letter No.337:3/JS(IS) dated 21.10.1995. These papers/letters other than those which had already been filed with the Commission, were as under: ( 1 ) Copy of Note dated 22.5 .l991 by Shri R .K .

Bhargava, Home Secretary marked to Law Secretary/ Cabinet Secretary/P.M. (H.M. ) (Ex .295) (2) Copy of Note dated 23.5.199l along with amended draft Notification dated May, 1991 regarding appointment of the

Commission of Inquiry under Section 3 of the Commissions of Inquiry Act, 1952.(Ex .296)

(3 ) Copy of letter dated 25 .5.1991 from Shri Justice Ranganath Misra, Chief Justice of India to Shri Justice J.S. Verma, Judge, Supreme Court of India.

(4) Copy of Letter dated 28.7.1991 from Shri Justice Ranganath Misra, Chief Justice of India to Shri P.V. Narasimha Rao, Prime Minister of India.

(5) Copy of note sent to the Prime Minister of India on 29.7.1991.

2.20 During the course of his deposition before the Commission on 24th October, 1995 Shri. R K Bhargava stated that -

" I do not have the record with me . I do not recall what was the Cabinet decision. My note is based on the notesheet and the Cabinet decision. My note nowhere states that the Commission was to inquire into the sequence of events leading to the assassination and the conspiracy aspect. Neither the draft notification makes that out. I was in the Cabinet meeting on 22nd May, l991. I can only say after seeing the Notesheet whether the terms of reference of the Thakkar Commission were put up to me or not. I have no recollection whether the terms of reference of Thakkar Commission was placed before the Cabinet. I have no idea what the Cabinet Sectt. put up before the Cabinet with reference to setting of the Commission and its terms. I have no recollection whether I put up before the Cabinet any papers relating to the terms of reference to be inquired into by the Commission".

In reply to a question whether it would be normal for the office to ensure that there was approval of the Prime Minister on the file before it worded out the draft Notification, Shri Bhargava stated that "the decision of the Cabinet is there on the file, that has been shown to me. What action and what noting took place is not available. I would therefore only answer this question correctly if I have the notesheet before me. Shri Bhargava further stated that "in the papers shown to me there are note sheets missing and other papers are also missing, which I can detail only after the file is shown to me. File is not traceable is certainly a strange thing".

2.21 On the question whether there can be appointed two Commissions under the Commissions of Inquiry Act to deal with the question relating to different facets of the killing of Shri Rajiv Gandhi, the view expressed in the office note which was sent to the Prime Minister of India on 29.7.1991 and which has been quoted in extenso in an earlier paragraph of this chapter, was that the splitting up was not being done for the first time. The note referred to the assassination of Smt Indira Gandhi which was followed by widespread riots in different parts of the country and for which two separate Commissions of Inquiry were appointed. Justice Mishra was appointed as one-man Commision to inquire into two aspects: viz. how the riots had happened and to suggest ways and means for ensuring non-recurrence while the conspiracy in the matter of assassination was inquired into by another Commission of Inquiry headed by Justice Thakkar.

The terms of reference of these two Commissions, in my view, were however altogether different in nature. The simile of these two Commissions may not therefore be appropriate in the present context. The question for consideration is whether the terms of reference which comprised the Thakkar Commission of Inquiry could have been, in their entirety, enruoted to one Commission of Inquiry rather than splitting up those very terms and constituting two separate Commissions, one for the security aspect and the other for the conspiracy aspect and the related matters of the assassination of Shri Rajiv Gandhi.

2.22 Incredibly the original file relating to the appointment of Verma Commission of Inquiry was not produced before the Commission. The reconstructed file submitted by the Ministry of Home Affairs on 11th September, 1995 and the bunch of papers subsequently filed by Shri B. Datta, Counsel for the Central Government on October 20, 1995 could hardly shed light on the core issue or advance the case, as also deposed by Shri Bhargava. Strange though it may look, the truth or the mystery of it as to how and why two separate Commissions of Inquiry relating to the assassination of Shri Rajiv Gandhi were set up by the Government may therefore remain buried in the 'missing file which may perhaps never see the light of the day.'

2.23 The consensus at the Bar was that it would have been better if instead of appointing two Commissions of Inquiry only one Commission of Inquiry with comprehensive terms of reference on the lines of the Justice Thakkar Commission of Inquiry had been constituted to avoid duplicity of proceedings to some extent. It is not known whether the terms of reference of Justice Thakkar Commission were noticed from the very beginning or not.

**Copies of the correspondence exchanged between the authorities and the notifications referred to including the Reconstituted file submitted by the Ministry of Home Affairs and the bunch of papers filed by the Counsel for the Central Government are annexed to the Report [Annexures (i) to (xxi)] (Volume X).